Exhibit 10.2
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of July 17,
2008, between VERTIS, INC., a Delaware corporation (“
Borrower ”), VERTIS HOLDINGS, INC., a Delaware
corporation (“ Holdings ”), ENTERON GROUP LLC, a
Delaware limited liability company (“ Enteron
”), WEBCRAFT, LLC, a Delaware limited liability company
(“ Webcraft ”), WEBCRAFT CHEMICALS, LLC, a
Delaware limited liability company (“ Webcraft
Chemicals ”), USA DIRECT, LLC, a Delaware limited
liability company (“ USA Direct ”), VERTIS
MAILING, LLC, a Delaware limited liability company (“
Mailing ”) (each a “ Grantor ” and
collectively, the “ Grantors ”), each a debtor
and debtor-in-possession under chapter 11 of the Bankruptcy Code,
and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation,
in its capacity as Agent for Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Senior
Secured, Priming and Super Priority Debtor-in-Possession Credit
Agreement dated as of the date hereof by and among Grantors, the
Persons named therein as Credit Parties, Agent and Lenders
(including all annexes, exhibits and schedules thereto, as from
time to time amended, restated, supplemented or otherwise modified,
the “ Credit Agreement ”), Lenders have agreed
to make the Loans and to incur Letter of Credit Obligations on
behalf of Grantors;
WHEREAS, in order to induce Agent and Lenders
to enter into the Credit Agreement and the other Loan Documents and
to induce Lenders to make the Loans and to incur Letter of Credit
Obligations as provided for in the Credit Agreement, Grantors have
agreed to grant a continuing Lien on the Collateral (as hereinafter
defined) to secure the Obligations;
NOW, THEREFORE, in consideration of the
premises and mutual covenants herein contained and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as
follows:
1.
Defined
Terms .
(a)
All capitalized terms used
but not otherwise defined herein have the meanings given to them in
the Credit Agreement or in Annex A thereto. All other terms
contained in this Security Agreement, unless the context indicates
otherwise, have the meanings provided for by the Code to the extent
the same are used or defined therein.
(b)
“Uniform Commercial
Code jurisdiction” means any jurisdiction that has adopted
all or substantially all of Article 9 as contained in the 2000
Official Text of the Uniform Commercial Code, as recommended by the
National Conference of Commissioners on Uniform State Laws and the
American Law Institute, together with any subsequent amendments or
modifications to the Official Text.
2.
Grant of
Lien .
(a)
To secure the prompt and
complete payment, performance and observance of all of the
Obligations and all renewals, extensions, restructurings and
refinancings thereof, each Grantor hereby grants, assigns, conveys,
mortgages, pledges, hypothecates and transfers to Agent, for itself
and the benefit of Lenders, a Lien upon all of its right, title and
interest in, to and under all personal property and other assets,
whether now owned by or owing to, or hereafter acquired by or
arising in favor of such Grantor (including under any trade names,
styles or derivations thereof), and whether owned or consigned by
or to, or leased from or to, such Grantor, and regardless of where
located (all of which being hereinafter collectively referred to as
the “ Collateral ”), including:
(i)
all Accounts;
(ii)
all Chattel
Paper;
(iii)
all Documents;
(iv)
all General Intangibles
(including payment intangibles and Software);
(v)
all Goods (including
Inventory, Equipment and Fixtures);
(vi)
all
Instruments;
(vii)
all Investment
Property;
(viii)
all Deposit Accounts (as
such term is defined in the Code) of Grantor, including blocked
accounts, concentration accounts, Disbursement Accounts, and all
other bank accounts and all deposits therein;
(ix)
all money, cash or cash
equivalents of Grantor;
(x)
all Supporting Obligations
and Letter-of Credit Rights of Grantor;
(xi)
all commercial tort claims
of Grantor; and
(xii)
to the extent not
otherwise included, all Proceeds, tort claims, insurance claims and
other rights to payment not otherwise included in the foregoing and
products of the foregoing and all accessions to, substitutions and
replacements for, and rents and profits of, each of the
foregoing.
(b)
In addition, to secure the
prompt and complete payment, performance and observance of the
Obligations and in order to induce Agent and Lenders as aforesaid,
Grantor hereby grants to Agent, for itself and the benefit of
Lenders, a right of setoff against the property of each Grantor
held by Agent or any Lender, consisting of property described above
in Section 2(a) now or hereafter in the
possession or custody of or in transit to Agent
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or
any Lender, for any purpose, including safekeeping, collection or
pledge, for the account of such Grantor, or as to which such
Grantor may have any right or power.
(c)
This Security Agreement,
the Credit Agreement, the Interim Order, the Final Order, and the
other Loan Documents supplement each other, and the grants,
priorities, rights and remedies of the Agent and Lenders hereunder
and thereunder are cumulative. The Liens and security
interests referred to in this Section 2 and in the Loan
Documents are deemed valid and perfected by entry of the Interim
Order and the Final Order. The Agent may, but shall not be
required to, file any financing statements, mortgages, notices of
lien or similar instruments in any jurisdiction or filing office,
or to take possession of any Collateral or to take any other action
in order to validate or perfect the Liens and security interests
granted by or pursuant to this Security Agreement, the Interim
Order, the Final Order or any other Loan Document. If the
Agent shall, in its discretion, from time to time choose to file
such financing statements, mortgages, notices of lien or similar
instruments, take possession of any Collateral, or to take any
other action to validate or perfect any such security interests or
Liens, all such documents shall be deemed to have been filed or
recorded at the time and on the date of entry of the Interim
Order.
(d)
The Liens, security
interests, lien priorities, administrative expense claim priorities
and other rights and remedies granted to the Agent and Lenders
pursuant to this Security Agreement, the Interim Order, the Final
Order, and the other Loan Documents (specifically including but not
limited to the existence, perfection, and priority of the Liens and
security interests provided herein and therein, and the
administrative expense claim priority provided herein and therein)
shall not be modified, altered, or impaired in any manner by any
other financing or extension of credit or incurrence of debt by any
of the Grantors (pursuant to Section 364 of the Bankruptcy
Code or otherwise), or by any dismissal or conversion of any of the
Prepackaged Chapter 11 Cases, or by any other act or omission
whatsoever. Without limitation, notwithstanding any such
order, financing, extension, incurrence, dismissal, conversion, act
or omission:
(i)
subject to the Carve-Out
Expense provisions of the Credit Agreement, no costs or expenses of
administration which have been or may be incurred in the
Prepackaged Chapter 11 Cases or any conversion of the same or in
any other proceedings related thereto, and no priority claims, are
or will be prior to or on a parity with any claim of the Agent or
Lenders against the Grantors in respect of any Obligation;
and
(ii)
the Liens and security
interests in favor of the Agent and Lenders set forth in this
Section 2 and in the Loan Documents shall constitute
valid and perfected first priority Liens and security interests,
subject only to Liens permitted under the Credit Agreement,
Permitted Encumbrances and the Carve-Out Expense provisions of the
Credit Agreement, and shall be prior to all other Liens and
interests, now existing or hereafter arising, in favor of any other
creditor or any other person whatsoever.
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3.
Agent’s and
Lenders’ Rights; Limitations on Agent’s and
Lenders’ Obligations .
(a)
It is expressly agreed by
Grantors that, anything herein or in any other Loan Document to the
contrary notwithstanding, each Grantor shall remain liable under
each of its Contractual Obligations, including all Licenses, to
observe and perform all the conditions and obligations to be
observed and performed by it thereunder. Neither Agent nor
any Lender shall have any obligation or liability under any
Contractual Obligation by reason of or arising out of this Security
Agreement or any other Loan Document or the granting herein of a
Lien thereon or the receipt by Agent or any Lender of any payment
relating to any Contractual Obligation pursuant hereto.
Neither Agent nor any Lender shall be required or obligated in any
manner to perform or fulfill any of the obligations of any Grantor
under or pursuant to any Contractual Obligation, or to make any
payment, or to make any inquiry as to the nature or the sufficiency
of any payment received by it or the sufficiency of any performance
by any party under any Contractual Obligation, or to present or
file any claims, or to take any action to collect or enforce any
performance or the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or
times.
(b)
At any time after an Event
of Default has occurred and is continuing, without prior notice to
Grantor, Agent may notify Account Debtors and other Persons
obligated on any of the Collateral that Agent has a security
interest therein, and that payments shall be made directly to
Agent, for itself and the benefit of Lenders. Upon the
request of Agent, each Grantor shall so notify Account Debtors and
other Persons obligated on Collateral. Once any such notice
has been given to any Account Debtor or other Person obligated on
Collateral, each Grantor shall not give any contrary instructions
to such Account Debtor or other Person without Agent’s prior
written consent.
(c)
Agent may at any time in
Agent’s own name, in the name of a nominee of Agent or in the
name of any Grantor communicate (by mail, telephone, facsimile or
otherwise) with Account Debtors, parties to Contractual Obligations
and obligors in respect of Instruments to verify with such Persons,
to Agent’s satisfaction, the existence, amount, terms of, and
any other matter relating to, Accounts, Instruments, Chattel Paper
and/or payment intangibles. If a Default or Event of Default
shall have occurred and be continuing, each Grantor, at its own
expense, shall cause the independent certified public accountants
then engaged by such Grantor to prepare and deliver to Agent and
each Lender at any time and from time to time promptly upon
Agent’s request the following reports with respect to
Grantor: (i) a reconciliation of all Accounts; (ii) an
aging of all Accounts; (iii) trial balances; and (iv) a
test verification of such Accounts as Agent may request. Each
Grantor, at its own expense, shall deliver to Agent the results of
each physical verification, if any, which such Grantor may in its
discretion have made, or caused any other Person to have made on
its behalf, of all or any portion of its Inventory.
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4.
Representations and
Warranties . The Grantors jointly and severally,
represent and warrant that:
(a)
Each Grantor has rights in
and the power to transfer each item of the Collateral upon which it
purports to grant a Lien hereunder free and clear of any and all
Liens other than Liens permitted under the Credit Agreement and
Permitted Encumbrances.
(b)
No effective security
agreement, financing statement, equivalent security or Lien
instrument or continuation statement covering all or any part of
the Collateral is on file or of record in any public office, except
such as may have been filed (i) by any Grantor in favor of
Agent pursuant to this Security Agreement or the other Loan
Documents, (ii) in connection with any Liens permitted under
the Credit Agreement and Permitted Encumbrances, and (iii) by
any Grantor in favor of the secured parties under the Pre-Petition
Credit Agreement and related pre-petition loan
documents.
(c)
This Security Agreement is
effective to create a valid and continuing Lien on and, upon entry
of the Interim Order or the Final Order (as applicable) or upon the
filing of the appropriate financing statements listed on
Schedule I hereto, a perfected Lien in favor of Agent, for
itself and the benefit of Lenders, on the Collateral with respect
to which a Lien may be perfected by entry of the Interim Order or
the Final Order (as applicable) or a filing pursuant to the
Code. Such Lien is prior to all other Liens, except Permitted
Encumbrances that would be prior to Liens in favor of Agent for the
benefit of Agent and Lenders as a matter of law, and is enforceable
as such as against any and all creditors of and purchasers from
Grantor (other than purchasers and lessees of Inventory in the
ordinary course of business and non-exclusive licensees of General
Intangibles in the ordinary course of business). Upon the
entry of the Interim Order and the Final Order, all action by any
Grantor necessary or desirable to protect and perfect such Lien on
each item of the Collateral has been duly taken. Other than
as listed on Schedule III , Grantor does not sell any
Inventory to any Person on approval or on any other basis which
entitles the customer to return, or which may obligate any Grantor
to repurchase, such Inventory. Except as provided in the
Interim Order or the Final Order (as applicable), no authorization,
approval or consent is required to be obtained from any
Governmental Authority or other Person for the grant of the
security interest herein, the perfection thereof or the exercise by
Agent of its rights and remedies hereunder.
(d)
Schedule II
hereto lists all domestic
Stock, Instruments, Documents, Letter of Credit Rights and Chattel
Paper in respect of which each Grantor has an interest as of the
date hereof. Except as provided in the Interim Order or the
Final Order (as applicable), all action by such Grantor necessary
or desirable to protect and perfect the Lien of Agent on each item
set forth on Schedule II (including the delivery of all
originals thereof to Agent and the legending of all Chattel Paper
as required by Section 5(b) hereof) has been duly
taken. The Lien of Agent, for the benefit of Agent and
Lenders, on the Collateral listed on Schedule II hereto is
prior to all other Liens, except Liens permitted under the Credit
Agreement and
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Permitted Encumbrances that would be prior to
the Liens in favor of Agent as a matter of law, and is enforceable
as such against any and all creditors of and purchasers any
Grantor.
(e)
Each Grantor’s name
as it appears in official filings in the state of its incorporation
or other organization, the type of entity of each Grantor
(including corporation, partnership, limited partnership or limited
liability company), organizational identification number issued by
each Grantor’s state of incorporation or organization or a
statement that no such number has been issued, Grantor’s
state of organization or incorporation, the location of
Grantor’s chief executive office, principal place of
business, all warehouses, consignees and processors with whom
Inventory is stored or located and other premises where Collateral
is stored or located, and the locations of its books and records
concerning the Collateral are set forth on Schedule III
hereto. Schedule III hereto also sets forth the name
as it appears in official filings in the state of its incorporation
or other organization of any Person from whom Grantor has acquired
assets during the past five (5) years, other than assets
acquired in the ordinary course of Grantor’s business.
Each Grantor has only one state of incorporation or
organization.
(f)
With respect to the
Accounts, except as specifically disclosed on the most recent
Borrowing Base Certificate or other collateral report delivered to
Agent (i) they represent bona fide sales or leases of
Inventory or rendering of services to Account Debtors in the
ordinary course of each Grantor’s business and are not
evidenced by a judgment, Instrument or Chattel Paper;
(ii) there are no setoffs, claims or disputes existing or
asserted with respect thereto and no Grantor has made any agreement
with any Account Debtor for any extension of time for the payment
thereof, any compromise or settlement for less than the full amount
thereof, any release of any Account Debtor from liability therefor,
or any deduction therefrom except a discount or allowance allowed
by such Grantor in the ordinary course of its business for prompt
payment and disclosed to Agent; (iii) to each Grantor’s
knowledge, there are no facts, events or occurrences which in any
way impair the validity or enforceability thereof or could
reasonably be expected to reduce the amount payable thereunder as
shown on any Grantor’s books and records and any invoices,
statements and Borrowing Base Certificate or other collateral
report delivered to Agent and Lenders with respect thereto;
(iv) no Grantor has received any notice of proceedings or
actions which are threatened or pending against any Account Debtor
which might result in any adverse change in such Account
Debtor’s financial condition; and (v) no Grantor has
knowledge that any Account Debtor is unable generally to pay its
debts as they become due; and (vi) they constitute the legally
valid and binding obligation of the applicable Account
Debtors. Further with respect to the Accounts (x) the
amounts shown on all invoices, statements and Borrowing Base
Certificate or other collateral report which may be delivered to
the Agent with respect thereto are actually and absolutely owing to
such Grantor as indicated thereon and are not in any way
contingent; (y) no payments have been or shall be made thereon
except payments immediately delivered to the applicable Blocked
Accounts or to the Agent as required by the Credit Agreement; and
(z) to each Grantor’s knowledge, all Account Debtors
have the capacity to contract.
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(g)
With respect to the
Inventory (i) all such Inventory is located at one of the
locations set forth on Schedule III hereto, (ii) no
Inventory is now, or shall at any time or times hereafter be stored
at any other location without Agent’s prior consent, and if
Agent gives such consent, the applicable Grantor will concurrently
therewith obtain, to the extent required by the Credit Agreement,
bailee, landlord and mortgagee agreements, (iii) the
applicable Grantor has good, indefeasible and merchantable title to
such Inventory and such Inventory is not subject to any Lien or
security interest or document whatsoever except for the Lien
granted to Agent, for the benefit of Agent and Lenders, and except
for Liens permitted under the Credit Agreement and Permitted
Encumbrances, (iv) such Inventory is not subject to any
licensing, patent, royalty, trademark, trade name or copyright
agreements with any third parties which would require any consent
of any third party upon sale or other disposition of that Inventory
or the payment of any monies to any third party upon such sale or
other disposition, and (v) the completion of manufacture, sale
or other disposition of such Inventory by Agent following an Event
of Default shall not require the consent of any Person and shall
not constitute a breach or default under any contract or agreement
to which Grantor is a party or to which such property is
subject.
(h)
no Grantor has any
interest in, or title to, any material Patent, Trademark or
Copyright except as set forth in Schedule 3.9 to the Credit
Agreement. This Security Agreement is effective to create a
valid and continuing Lien on and, upon the entry of the Interim
Order and the Final Order (as applicable) or upon filing of the
Copyright Security Agreements with the United States Copyright
Office and filing of the Patent Security Agreements and the
Trademark Security Agreements with the United States Patent and
Trademark Office, perfected Liens in favor of Agent on each
Grantor’s federally registered Patents, Trademarks and
Copyrights and such perfected Liens are enforceable as such as
against any and all creditors of and purchasers from any
Grantor. Upon the entry of the Interim Order and the Final
Order (as applicable) or upon filing of the Copyright Security
Agreements with the United States Copyright Office and filing of
the Patent Security Agreements and the Trademark Security
Agreements with the United States Patent and Trademark Office and
the filing of appropriate financing statements listed on
Schedule I hereto, all action necessary or desirable to
protect and perfect Agent’s Lien on each Grantor’s
federally registered Patents, Trademarks or Copyrights shall have
been duly taken.
5.
Covenants
. The Grantors,
jointly and severally, covenant and agree with Agent, for the
benefit of Agent and Lenders, that from and after the date of this
Security Agreement and until the Termination Date:
(a)
Further Assurances;
Pledge of Instruments; Chattel Paper .
(i)
At any time and from time
to time, upon the written request of Agent and at the sole expense
of Grantors and without any further order of the Bankruptcy Court,
each Grantor shall promptly and duly execute and deliver any and
all such further instruments and documents and take such further
actions as Agent may deem necessary or desirable to obtain the full
benefits of this Security Agreement and of the
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rights and powers herein granted, including
(A) all consents and approvals necessary or appropriate for
the assignment to or for the benefit of Agent of any Contractual
Obligation, including any License, held by such Grantor and to
enforce the security interests granted hereunder; and
(B) filing any financing or continuation statements under the
Code with respect to the Liens granted hereunder or under any other
Loan
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